The Arms Trade Treaty: a major achievement

The Convention on Cluster Munitions: A Commentary

By Stuart Casey-Maslen

On Tuesday, 2 April 2013, after seven years of discussions and negotiations, the United Nations General Assembly adopted the UN Arms Trade Treaty by an overwhelming margin — the first ever global agreement governing the transfer of conventional arms. A total of 154 States voted in favour of the resolution, three voted against, and 23 abstained. The treaty will now be opened for signature on 3 June 2013.

The treaty is a strong and balanced text that clearly enjoys very widespread support, and if adhered to and implemented in good faith it will significantly reduce the humanitarian impact from the irresponsible transfer of weapons. That it is a meaningful treaty is evidenced by the fact that in two successive diplomatic conferences, certain States blocked its adoption by consensus. First time around, in July 2012, it was the United States (followed by Russia) that asked for more time. In the ‘final’ diplomatic conference in late March 2013, three States — Iran, DPR Korea, and Syria — blocked the adoption of the text that had been skillfully negotiated by the new Conference President, Ambassador Peter Woolacott of Australia. These same three States went on to vote against the General Assembly resolution that adopted the treaty.

So what does the treaty provide? First, its scope is broad, covering most (though not quite all) conventional arms, ammunition and munitions, and parts and components of arms. Thus, the treaty covers tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons, as well as the ammunition and munitions that are fired, launched, or dropped by all these weapons. Parts and components of arms are covered, but not those of ammunition/munitions. Somewhat strangely, the treaty does not apply to hand grenades or landmines.

Furthermore, despite occasional assertions to the contrary, the treaty does apply to the transfer of unmanned aerial vehicles (drones), at least when they are armed, as in this case they fall under the definition of combat aircraft. This is consistent with the coverage of the UN Register of Conventional Arms (UNROCA) and the discussions in the 2006 Group of Governmental Experts on the UNROCA. It also applies to armored vehicles that take more than four soldiers (despite press reports to the contrary), so the United Kingdom’s supply of ‘less-lethal’ weaponry to the Syrian rebels would be subject to the provisions of the treaty setting out prohibitions on transfer.

However, whether the treaty applies only to sale or also to gifts or loans was left deliberately ambiguous. China was insistent that the treaty not cover more than sale. Many other states sought to insist that it did. What is clear is that on the basis of pacta sunt servanda (the duty to apply and implement a treaty in good faith), no state party could simply seek to avoid the ambit of the treaty by listing all its transfers of conventional arms as ‘gifts’.

Despite calls by many States, the treaty does not explicitly prohibit any transfer to any armed non-state actor. Arguably, however, transfers to ANSAs are unlawful under the prohibition in Article 2(4) of the United Nations Charter, which is brought under the scope of the treaty by Article 6(2) (‘international agreements’ to which a State Party to the ATT is also party). Arguably, Article 6(2) also incorporates human rights treaties to which a State Party to the ATT is also party. This was stated by 100 States in a joint declaration following the adoption of the treaty at the UN General Assembly.
The treaty prohibits the transfer of any arms and ammunition/munitions within its scope that would be used in the commission of genocide, crimes against humanity, or war crimes (in non-international as well as international armed conflicts). This includes targeting civilian objects or civilians ‘protected as such’ (i.e. where they are not participating actively/directly in hostilities), as well as serious violations of Common Article 3 to the 1949 Geneva Conventions. Reflecting customary law as set out in Article 16 of the International Law Commission draft Articles on State responsibility for internationally wrongful acts, this provision could become an important norm of custom in and of itself in years to come. The intent standard suggested by the ILC (‘for the purpose of’) has rightly been replaced by a knowledge threshold (‘where a State has knowledge that’ the arms etc. ‘would’ be so used), consonant with the customary standard for individual responsibility under international criminal law (the 1998 Rome Statute of the International Criminal Court aside) as well as for State responsibility itself.

The precise standard of ‘overriding’ risk for the prohibitions set out in Article 7 to apply (serious violations of either international humanitarian law or human rights law) remains vague. It probably, though, requires a very significant potential contribution to peace and security to override the potential negative consequences.

There is a general obligation to ‘take measures necessary’ to implement the treaty (Art. 5(5)), as well as to ‘establish and maintain’ a national control system (Art. 5(2)). Reporting on measures to implement the treaty is obligatory (Art. 13(1)). Reporting on ‘authorized or actual exports or imports of arms’ (but not ammunition/munitions) is similarly obligatory but ‘commercially sensitive or national security information’ may be excluded (Art. 13(3)). There is, though, no specific obligation to penalize violations of the treaty. The obligation is only to ‘take appropriate measures to enforce national laws and regulations that implement’ the treaty (Art. 14).

The first Conference of States Parties will occur within a year of the treaty’s entry into force. The Conference will decide on the frequency of subsequent CSPs (Art. 17(1)). A provisional secretariat will be established prior to the first Conference of States Parties (Art. 18(1)). The location of the Secretariat is not fixed under the treaty.

Amendments may, as ‘a last resort’, be adopted by a three-quarter majority of States Parties present at voting at a CSP. The first amendments may only be proposed six years after entry into force of the treaty.

Finally, States Parties may conclude or continue to implement other agreements as long as the obligations are ‘consistent’ with the treaty (Art. 26(1)), and defense cooperation agreements may not be voided by reference to the Arms Trade Treaty (Art. 26(1)). This clause, proposed forcefully by India, was hard fought over, and it is ironic that India has announced that it will now not sign the treaty.

In sum, though, States and civil society may justly be proud of the Arms Trade Treaty they worked so hard to achieve. As Mexico stated in the General Assembly, however, ‘the hard work starts now.’